dissenting.
I strongly disagree with the majority’s conclusion that witness Stanton’s testimony bore sufficient indicia of reliability to be introduced at trial without any cross-examination. The Government’s entire case rested upon Stanton’s testimony. Under such circumstances, a court must carefully examine its trustworthiness before permitting its use. Several factors that were ignored by the majority indicate that the testimony was quite unreliable. I would therefore affirm the judgment of the district court.
The Supreme Court’s recent opinion in Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), establishes the standards to be applied in determining the admissibility of testimony from a preliminary hearing when the witness is unavailable to testify at the trial. The Court declared, “Reflecting its underlying purpose to augment accurary in the fact-finding process by ensuring the defendant an effective means to test adverse evidence, the [Confrontation] Clause countenances only hearsay marked” by sufficient “ ‘indicia of reliability.’ ” Id. 65, 100 S.Ct. at 2538, quoting *465Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970). These indicators “afford the trier of fact a satisfactory basis for evaluating the truth of the statement.” California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970).1 The majority discusses a number of factors that they consider to be such indicia of reliability, but their analysis constitutes only a partial analysis of the facts of this case. A court must do more than consider whether these factors exist. It must also examine whether there exist certain indicia of unreliability. This the majority failed to do.
There are several critical issues in this case that indicate that Stanton’s testimony was too unreliable to be admitted without any cross-examination. Foremost is the fact that three other men whom the witness identified as co-perpetrators with the defendant of the murders were not convicted of the crimes. One was acquitted, and the two others were not prosecuted because police investigation showed that they were not involved in the crimes. These facts greatly impinge upon the reliability of the witness’s testimony. If he was incorrect twice previously, it seems reasonable to conclude that a distinct possibility could exist that he may be wrong again. Stanton’s credibility is further eroded when one considers that even though the witness testified that three men committed the murders, he has identified four different men. With such a past history for error, I am unable to find Stanton’s testimony to be marked with such trustworthiness that it should be brought before the trier of fact without confrontation.
Evidence was also presented that the witness was under the influence of narcotics at the time of the crime. Harry Daniels, one of the witnesses for the defense, testified that Stanton and others were “snorting heroin” shortly before the murders and that the witness was “pretty much out of it.” At the preliminary hearing, Haywood s counsel was not permitted to question Stanton on his physical condition. I find it intolerable to accept these statements without some questioning concerning his ability accurately to identify and describe the events of the night in question. The witness had been incorrect three times before. By ignoring these issues and permitting the testimony to be admitted, the majority does not appear to be concerned with the existence of indicia of reliability.
The majority opinion points out several other inconsistencies in Stanton’s testimony. Maj. op., supra, at 463-464. It concludes, however, that because Haywood’s counsel was able to point out these inconsistencies to the jury, Haywood was thereby able to impeach Stanton’s testimony without any prejudice from his absence.2 This assertion is simply not correct. In judging the veracity of a statement, the trier of fact does not rely on the facts themselves. The jury must also consider the witness’s demeanor, his reaction to point blank questions, and the manner in which he speaks. For these reasons, the Confrontation Clause affords an accused
an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.
Mattox v. United States, 156 U.S. 237, 242-43, 15 S.Ct. 337, 339, 39 L.Ed.2d 409 (1895). It is quite different for a jury to hear impeaching evidence from defense counsel, as occurred here, and for a jury to see how a witness reacts when confronted with that evidence. Failure for this opportunity to occur calls into question the “integrity of the fact finding process.” Chambers v. Mississippi, 410 U.S. 285, 295, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973), quoting Berger *466v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969).
Here the defendant did not have the opportunity to expose falsehood in front of the trier of fact. Especially in light of Stanton’s unquestionably poor past record of veracity and his intoxication from heroin on the evening in question, I find it grossly unfair for the defendant to be convicted solely on this evidence.
Our criminal justice system, through the Constitution’s guarantee of the right of a defendant to confront a witness against him, seeks to ensure that no innocent man will be deprived of his freedom. Although the Supreme Court has permitted the jury to consider unconfronted testimony when sufficient indicia of reliability exists, extreme care must be taken. Here I am convinced that this testimony does not meet that high standard. I am consequently concerned that an innocent man might have been sentenced to prison. I would therefore affirm the district court.
. See also Mancusi v. Stubbs, 408 U.S. 204, 213, 92 S.Ct. 2308, 2313, 33 L.Ed.2d 293 (1972); Ohio v. Roberts, supra, 448 U.S. at 65-66, 100 S.Ct. at 2538-39.
. The majority even makes the remarkable statement that Haywood may have been helped by Stanton’s absence. Maj. op., supra, p. 464.